Entire U.S. appeals court to hear Easton 'Boobies' case

The Easton Area School District's appeal of a federal court ruling that allows students to wear "I ♥ Boobies" bracelets in school will be heard by the entire 3rd U.S. Circuit Court of Appeals.

A three-judge panel from the circuit court heard arguments in April on the appeal, but an order issued Thursday by Chief Judge Theodore McKee brushed aside the panel's draft opinion and set up a rehearing of the case before the full 14-judge court.

The school district asked for a reversal of a lower court's April 2011 decision that barred the district from disciplining students who wear the bracelets. The district had argued the use of the word "boobies" is vulgar in a middle-school setting.

The case drew national attention as schools grappled with similar questions over the bracelets, which are sold by the Carlsbad, Calif.-based Keep A Breast Foundation. In February, a federal judge in Wisconsin ruled that school officials are allowed to ban the bracelets, the opposite of U.S. District Judge Mary A. McLaughlin's finding in the Easton case.

Easton Area Middle School students Brianna Hawk, who was an eighth-grader, and Kayla Martinez, who was in seventh grade, were suspended in 2010 for wearing "I ♥ Boobies!" bracelets.

The students' attorney, Mary Catherine Roper of the American Civil Liberties Union, said the court's decision to hear the case before all of the judges means there was some disagreement over the three-judge panel's opinion.

The panel's opinions are circulated among the circuit court's judges, who then discuss the cases, Roper said. She said more than half must disagree, or want to hear the case for themselves, to push the case in front of the entire circuit.

"You never expect a hearing [before an entire circuit court]," Roper said. "What it means is: There is disagreement among the judges."

John Freund, the school district's attorney, argued that the school needs to be able to make decisions regarding dress code and offensive slogans.

Freund said the order to hear the case before the entire circuit court is neither good nor bad.

"What it does tell us," Freund said, "is that the judges on the court who have reviewed the draft opinions of the three-judge panel have found that the issues in the case were significant enough that they wanted to hear the argument personally."

Freund said the issue of "I ♥ Boobies" bracelets appears goofy, but the law behind the case is a big deal.

"The issues are not frivolous or small," he said. "The constitutional issues presented are not frivolous."

Roper argued in court that the word is neither lewd nor sexual, but instead said it is silly, yet protected, speech.

She said the court will review the case and may order new briefs from attorneys, but cannot take new testimony or evidence. The court may also choose to hear oral arguments, but does not have to. She expects the court to ask for arguments, though.

The lower court's ruling allowing students to wear the bracelets stands until a higher court overrules it.

"We still have that win," Roper said. "The bracelets are still allowed in the school right now, and that will be the situation until the court says something else."

In a sample letter addressed to school district superintendents or other officials, the Keep A Breast Foundation cites McLaughlin's April 2011 ruling as a reason to allow students to wear its bracelets. According to the foundation's financial information, 91 percent of its income comes from "awareness merchandise" sales.

According to the latest information available, the foundation's revenue exploded from $1 million in 2009 to more than $7 million in 2010, the year Hawk and Martinez were suspended and the school outlawed the bracelets. The bracelets sell for $3.99 each.